People v. Weiss

• Decision Date: 24 April 2006
• Docket Number: No. 05SA227.,05SA227.
• Citation: 133 P.3d 1180
• Parties: In Re: Plaintiff: PEOPLE of the State of Colorado, v. Defendant: Thomas Robert WEISS.
• Court: Colorado Supreme Court

133 P.3d 1180

In Re: Plaintiff: PEOPLE of the State of Colorado, v. Defendant: Thomas Robert WEISS.

No. 05SA227.

Supreme Court of Colorado, En Banc.

April 24, 2006.

Don Quick, District Attorney, 17th Judicial District Michael J. Milne, Senior Deputy District Attorney, Brighton, for Petitioner.

David S. Kaplan, Colorado State Public Defender Sarah Quinn, Deputy State Public Defender, Brighton, for Respondent.

HOBBS, Justice.

In this prosecution for sexual assault and incest on a minor, we exercised our original jurisdiction under C.A.R. 21 to review the trial court's admission of evidence concerning the alleged victim's prior reports of sexual assault against persons other than the defendant.¹ The defendant made a motion to pierce the rape shield statute under the history of false reporting provisions of subsections 18-3-407(2) and (2)(a), C.R.S. (2005).² Defendant's subsection 18-3-407(2)(b) affidavit in support of the motion asserted that the alleged victim had made a number of false reports of sexual assault against other persons and these reports had not resulted in charges being filed.

Over the prosecution's objection that the offer of proof was insufficient to warrant convening a rape shield hearing under subsection 18-3-407(2)(c), C.R.S. (2005), the trial court convened a hearing and ruled that (1) the jury was entitled to know the number of times and the circumstances under which the complaining witness had made prior reports of sexual assault and (2) this evidence was admissible to impeach the alleged victim's credibility.

We hold that the defendant's offer of proof was insufficient as a matter of law under the statute to warrant the trial court convening an in camera evidentiary hearing pursuant to subsection 18-3-407(2)(c). To invoke a rape shield hearing, the history of false reporting provisions of the rape shield statute require that the affidavit accompanying the defendant's offer of proof must articulate facts which, if demonstrated at the evidentiary hearing by a preponderance of the evidence, would show that the alleged victim made multiple prior or subsequent reports of sexual assault that were in fact false. An allegation that charges were not brought as a result of other sexual assault allegations is insufficient as a matter of law to warrant the trial court convening an evidentiary hearing under subsection 18-3-407(2)(c).

Accordingly, we make our rule absolute and set aside the trial court's ruling admitting evidence of the alleged victim's prior sexual assault reports.

I.

The prosecution charged Weiss with sexual assault, pattern of abuse, in violation of section 18-3-405, C.R.S. (2004), a class three felony; incest, in violation of section 18-6-301, C.R.S. (2004), a class four felony; and sexual assault on a child, in violation of section 18-3-405, C.R.S. (2004), a class four felony.

The information alleged that between April 1, 2002 and May 11, 2002, Weiss subjected C.W., his great-niece who was twelve years old, to sexual contact. Weiss waived his right to a preliminary hearing and pled not guilty. The trial court set the case for trial.

Weiss filed two motions to pierce the rape shield statute pursuant to the false sexual assault reporting provisions of the rape shield act. Based on Jefferson County Social Service records, the first motion alleged that C.W. made a false report about her mother's boyfriend, C.H., because she wanted to live with her father, and that she made a false report against Weiss when she was living with her grandmother and Weiss because she wanted to live with her step-mother.

In support of this motion, the defense investigator's affidavit recited that, in making the false report concerning her mother's boyfriend, she also made false reports concerning her biological father, J.W., and another great-uncle of hers, Weiss's brother, that occurred when she was eight years old. In regard to the report concerning her father, the affidavit's recitation of falsity was that C.W. had said her father was in jail for molesting her and her siblings; whereas he was in jail for forgery and contempt of court, not sexual assault, and no record existed of sexual assault charges being filed against him. In regard to the other great-uncle, the affidavit recited that no charges against him were ever pursued or substantiated. In regard to the mother's boyfriend, the affidavit recited that he had pled guilty to third degree assault.

The affidavit accompanying the motion to pierce the rape shield statute states in full:

I, Alison Christensen, being first duly sworn upon my oath do swear as follows:

1. I am the investigator for the Office of the Colorado State Public Defender who is investigating the above captioned matter for defense counsel Sarah Quinn, Deputy State Public Defender appointed to represent Mr. Weiss in this matter.

2. This case involves an allegation of Sex Assault on a Child, pursuant to C.R.S. § 18-3-405.

3. A report written by Detective Rachel Nunez, indicates that during the interview of [C.W.] regarding this incident, [C.W.] indicated that she had been sexually assaulted by her father [J.W.]. [C.W.] told Wendy Talley, a counselor at the Spot Youth Center that her father was in jail for molesting her and her siblings.

4. [J.W.] is in custody in the Adams County Jail for Contempt of Court and Forgery, not sex assault. Further I have reviewed GGCC and found no charges of sexual assault against [J. W.].

5. The report also indicates that [defendant Weiss] resided in the same home as [C.W.] during the time period of these allegations.

6. A report written by Jefferson County Social Worker, Noelle Johnson on May 24, 1999, indicates that on May 22, 1999, [C.W.] made allegations that [her other great-uncle] who was living with her at the time, had sexually abused her. These allegations were made to Ms. Johnson and Wheat Ridge Detective Colleen McGuire during the investigation of allegations of sexual abuse [C.W.] made against her mother's boyfriend [C.H.] The allegations against [C.H.] were also made during the time he was living in the same home as [C.W.] according to Detective McGuire's report.

7. Detective McGuire's June 2, 1999 report indicates that no charges against [the other great-uncle] were ever pursued or substantiated.

8. I reviewed the Court records from [C.H.'s] case and he pled guilty to third degree assault on December 2, 1999.

9. All of this information is contained in the discovery provided by the district attorney's office to defense counsel and Social Service records provided to the Court.

(Emphasis added.)

After receiving Social Service records from Adams County, the defense filed a supplemental motion reciting that C.W. had made "at least six more false allegations of sexual assault" against different men and "none of those false allegations resulted in criminal charges." The supplemental motion was not accompanied by an affidavit. As with the first motion, the basis for the allegation of falsity made in the supplemental motion was that no charges had been filed as a result of the reports:

The defense has now reviewed the Social Service records from Adams County. Included in those reports are at least six more false allegations of sexual assault made by [C.W.] against different men. None of those false allegations resulted in criminal charges and at least one detective who conducted an investigation into these allegations expressed concern with the veracity and credible of the complaints made by [C.W.].

(Emphasis added.)

In response to the defense request for an evidentiary hearing under the rape shield statute, the prosecution moved to exclude the prior sexual assault reports pursuant to the rape shield statute. The motion was made on the basis that (1) such reports are shielded under the prior sexual conduct provisions of the statute and (2) the defense offer of proof was insufficient, as a matter of law, to warrant a rape shield hearing. Opposing an evidentiary hearing as unwarranted, the prosecution requested a trial court ruling that the defense had the burden of demonstrating the falsity of C.W.'s prior sexual assault reports should an evidentiary hearing be ordered.

The trial court convened a hearing.³ No witnesses presented testimony at the hearing, although some were under subpoena to attend. As in the motion and supplemental motion for an evidentiary hearing, defense counsel at the hearing alleged that C.W.'s prior reports of sexual assault against others should be admitted because they had not resulted in charges being brought, and C.W. had made the accusations to manipulate parenting time and her Social Services placements. After listening to prosecution and defense counsel, the trial court ruled inadmissible C.W.'s sexual assault report when she was eleven years old against a person named "Dean" because DNA evidence from C.W. linked him to the sexual assault for which he was charged.

In regard to C.W.'s sexual assault report against her mother's boyfriend, Weiss withdrew his request to admit that report because C.H. was charged in that instance.

In regard to C.W.'s statement concerning her father when she was eleven years old, the defense argued that (1) he had not been charged with sexual assault on her; (2) she had falsely stated that her father was in prison for sexually molesting her, whereas, he was in jail for different crimes; and (3) a social worker reported that C.W. "intertwined" the accusations against her father with her living situation.

The trial court refused to admit C.W.'s statements concerning the reasons for her father being in prison, because her youth militated against an understanding of the charges against him that resulted in the imprisonment.

Nevertheless, the trial court allowed the defense to introduce evidence at trial that C.W. had made a number of sexual assault reports, based on the defense allegations that she made these reports in order to "manipulate" parenting time...